RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 January 2008
	DOCKET NUMBER:  AR20070012840 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Mr. Paul M. Smith

Member

Mr. Larry C. Bergquist

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his under other than honorable conditions discharge be upgraded to a general or honorable discharge.

2.  The applicant states, in effect, that at the time of his discharge he was told that the discharge would automatically be upgraded.  He states he was never informed of his right to turn down the request and to ask for a hearing.  He did his 3-year commitment to the Army already and he did not know his discharge wasn't upgraded until he applied for medical benefits in 2005.

3.  The applicant provides several copies of character statements and his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military service records show that he entered active duty on 26 July 1977.  He completed all the necessary training and was awarded the military occupational specialty (MOS) 31M (Multichannel Communications Equipment Operator).

3.  Between 6 March 1978 and 20 February 1979, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for willfully disobeying an order from a superior noncommissioned officer, being disrespectful towards a superior noncommissioned officer, and wrongfully having in his possession marijuana.

4.  On 7 May 1980, charges were preferred against the applicant for being absent without leave (AWOL) during the periods 20-24 March 1980, 10-15 April 1980, and 25 April to 6 May 1980; for without authority, failing to go at the time prescribed to his appointed place of duty, Company Formation (three specifications); for making a false and fraudulent claim against the United States in the amount of $299.00; and for stealing $299.00.

5.  The applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of under other than honorable conditions discharge, and of the procedures and rights that were available to him.

6.  The applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provision of Army Regulation 635-200 (Personnel Separation), chapter 10.

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and state law.  He also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life by reason of an Under Other Than Honorable Discharge Certificate.  The applicant was advised that he may submit any statements he desires in his own behalf, which will accompany his request for discharge.  The applicant did not submit a statement in his own behalf.

8.  On 23 May 1980, the applicant's commander forwarded his recommendation for separation to the approving authority.  On 27 May 1980, the approving authority approved the applicant's request and directed the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate.  Upon discharge the applicant was reduced to the lowest enlisted grade E-1.

9.  On 3 June 1980, the applicant was discharged.  The DD Form 214 he was issued shows he completed a total of 2 years, 9 months, and 18 days of active military service and that he accrued 20 days of time lost.

10.  The character statements that the applicant submitted states, in effect, that he is a professional, knowledgeable, and a conscientious worker.  He has good character, honesty, and is dedicated to the service of others.  He volunteers in his community and he is the Director of the Rebound Adolescent and Family Treatment Center.
11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his under other than honorable conditions discharge be upgraded to a general or an honorable discharge.  He states he was told that his discharge would be automatically upgraded.

2.  The evidence shows the applicant was AWOL from 20-24 March 1980;  
10-15 April 1980; and 25 April to 6 May 1980.  He had, without authority, failed to go to his appointed place of duty, Company Formation on three occasions; he stole $299.00; and he made a false and fraudulent claim against the United States in the amount of $299.00.  As such, an under other than honorable conditions discharge was equitable and proper.

3.  The character statements submitted by the applicant are noted; however, his post-service achievements are not sufficiently mitigating to warrant an upgrade of a properly issued discharge.

4.  The applicant’s statement that he was led to believe his discharge would be upgraded after discharge is noted.  However, the Army does not have or ever had a policy for an automatic upgrade.

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  The extensive length of his AWOL renders his service unsatisfactory. Therefore, he is not entitled to either an honorable or a general discharge.

6.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LCB__  __PMS__  __SLP ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




_____Shirley L. Powell____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080129
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.